22-1090 Corrigan v. New York City Dist. Council of Carpenters and Joiners of Am.

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER Rulings by summary order do not have precedential effect. Citation to a summary order filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and this court’s Local Rule 32.1.1. When citing a summary order in a document filed with this court, a party must cite either the Federal Appendix or an electronic database (with the notation “summary order”). A party citing a summary order must serve a copy of it on any party not represented by counsel.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 13th day of January, two thousand twenty-three.

PRESENT: Amalya L. Kearse, Rosemary S. Pooler, Steven J. Menashi, Circuit Judges. ____________________________________________

PETER V. CORRIGAN,

Plaintiff-Appellant,

v. No. 22-1090

NEW YORK CITY DISTRICT COUNCIL OF CARPENTERS AND JOINERS OF AMERICA,

Defendant-Appellee. * ____________________________________________

* The Clerk of Court is directed to amend the caption as set forth above. For Plaintiff-Appellant: Robert K. Erlanger, Erlanger Law Firm, PLLC, New York, NY.

For Defendant-Appellee: Gillian Costello, James M. Murphy, Spivak Lipton LLP, New York, NY.

Appeal from a judgment of the United States District Court for the Southern

District of New York (Marrero, J.).

Upon due consideration, it is hereby ORDERED, ADJUDGED, and

DECREED that the judgment of the district court is AFFIRMED.

Plaintiff-Appellant Peter V. Corrigan appeals the judgment of the United

States District Court of the Southern District of New York dismissing his claims

under the Labor Management Reporting and Disclosure Act (“LMRDA”) against

the New York City District Council of Carpenters and Joiners of America (the

“District Council”). We presume the parties’ familiarity with the facts and

procedural history.

I

Corrigan contends that the district court erred by construing the parties’

exchange of letters as a motion to dismiss with full briefing. “The long-standing

general rule is that a court may not dismiss an action without providing the

2 adversely affected party with notice and an opportunity to be heard.” Acosta v.

Artuz,

(2d Cir. 2000). We have said that “the practice of

construing pre-motion letters as the motions themselves” is inappropriate except

in limited circumstances and that “parties must be afforded notice that the court

is considering dismissal based solely on the arguments presented in pre-motion

letters.” Int’l Code Council, Inc. v. UpCodes Inc.,

, 54-55 (2d Cir. 2022).

“[D]ismissal absent notice and an opportunity to be heard can itself be grounds

for reversal,” but when the parties have “fully briefed all the questions raised on

… appeal” and the issues are “predominantly of a legal nature,” the appellate

court is “adequately informed to decide them.” McGinty v. New York,

(2d Cir. 2001). Citing McGinty, we have treated “a district court’s failure on this

front as a form of harmless error.” Kapitalforeningen Lægernes Invest v. United Techs.

Corp.,

, 70 (2d Cir. 2019).

This court decided UpCodes in July 2022, several months after the district

court’s decision in this case. Accordingly, the district court did not have the benefit

of this court’s binding guidance on the practice of construing pre-motion letters as

fully briefed motions. Because the district court did not give notice to the parties

that it was considering dismissal based on the pre-motion letters, it erred. See

3 UpCodes, 43 F.4th at 54-55. Despite this error, Corrigan and the District Council

have each fully briefed the issues on appeal. And the merits issue—whether the

district court erred when it dismissed Corrigan’s LMRDA claims—is a legal issue

we review de novo. See Vaughn v. Phoenix House New York Inc.,

(2d Cir. 2020). We are therefore “adequately informed” and conclude that the

district court’s error was harmless. McGinty,

.

A district court does not necessarily err when it construes letters to be full

briefs in appropriate circumstances. But we conclude that those circumstances are

absent here, so there was error. Because the parties have fully briefed the issues on

appeal and those issues are predominantly legal, the error was harmless.

II

Corrigan’s amended complaint sought relief under §§ 101(a)(2) and 609 of

the LMRDA. The district court concluded that the amended complaint failed to

state a claim under either provision because it did not adequately plead loss of

union membership rights or a general scheme to suppress dissent. We agree.

Section 101(a)(2) “protects union members from direct interference with

union membership rights in retaliation for their expression of opinions concerning

union activities.” Maddalone v. Loc. 17, United Bhd. of Carpenters & Joiners of Am., 152

(2d Cir. 1998). The Supreme Court has explained that the LMRDA

“protect[s] the rights of union members from arbitrary action by the union or its

officers,” but it does not aim to “perpetuat[e] appointed union employees in

office.” Finnegan v. Leu,

(1982); see also Franza v. Int’l Bhd. of

Teamsters, Loc. 671,

(2d Cir. 1989) (noting that courts have routinely

held the LMRDA protects against adverse actions that “directly affect or alter the

union member’s rights qua member.”). Accordingly, the Supreme Court concluded

that a plaintiff did not state a claim under § 101(a)(2) when he was terminated from

his job as a business agent with the union but retained all his union membership

rights. Finnegan,

. Corrigan’s amended complaint alleges that he

was terminated as a business agent—the same facts that were presented in

Finnegan. For that reason, Corrigan’s termination from his position as business

agent is, without more, not actionable under § 101(a)(2).

Corrigan seeks to avail himself of an exception to Finnegan that this court

has recognized: a § 101(a)(2) claim will lie “where the removal of a union officer

was part of purposeful and deliberate attempt … to suppress dissent within the

union.” Maddalone, 152 F.3d at 184 (quoting Schonfeld v. Penza,

(2d Cir. 1973)). In such a “rare” and “unusual” circumstance, we require “clear and

5 convincing proof” of the union’s attempt to suppress dissent. Cotter v. Owens,

(2d Cir. 1985); see Maddalone, 152 F.3d at 184. Corrigan points to no

factual allegations in his amended complaint that would plausibly suggest a

scheme to retaliate against “union members who desire[] to exercise their rights.”

Johnson v. Kay,

(2d Cir. 1988).

The amended complaint makes the conclusory allegation that the District

Council’s leadership has for several decades retaliated against members who

didn’t “fall in line.” App’x 40 (¶ 223). But it provides only two examples of

retaliation, and neither supports Corrigan’s claim that there was a deliberate

scheme to suppress dissent. First, the amended complaint points out that the

District Council was the defendant in Maddalone, which involved retaliation for

exercising speech rights. But the facts at issue in Maddalone took place in 1994 and

1995—more than two decades before the facts here. See Maddalone, 152 F.3d at 182.

And the amended complaint provides no connection between the retaliation in

Maddalone and the retaliation against Corrigan. Maddalone is not probative of

whether there was a scheme to suppress dissent here. Second, the amended

complaint points to a related case brought against the District Council by Peter

Marsalisi, who was terminated from his job with the District Council’s Office of

6 the Inspector General. Marsalisi was allegedly terminated for “looking into

matters that threatened [union leaders] and [their] cronies.” App’x 41 (¶ 225). In

contrast, Corrigan was allegedly terminated from his position as business agent

for opposing a proposal to lower wages. The amended complaint fails to show

how the example of Marsalisi—which involves an entirely different basis for

retaliation—supports the allegation that there was a scheme to suppress dissent.

For these reasons, Corrigan has failed to state a § 101(a)(2) claim either under

Finnegan or Maddalone.

Corrigan’s LMRDA § 609 claim fails for similar reasons. Section 609

prohibits a union from “disciplin[ing]” any of its members “for exercising any

right to which he is entitled under the provisions of this chapter,” including the

right to freedom of speech.

. Like § 101(a)(2), Congress intended

§ 609 to protect “rank-and-file union members—not union officers or employees[]

as such.” Finnegan,

. “[D]iscipline” in § 609 therefore refers “only to

retaliatory actions that affect a union member’s rights or status as a member of the

union.” Id. Because Corrigan’s termination as a business agent does not “impinge

upon the incidents of [his] union membership,” his termination from that position

without more does not support a § 609 claim. Id. at 438.

7 * * *

We have considered each of Corrigan’s arguments, which we conclude are

without merit. For the foregoing reasons, we AFFIRM the judgment of the district

court.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

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